Houston Land & Trust Co. v. Commissioner

HOUSTON LAND & TRUST COMPANY, TRUSTEE OF THE ESTATE OF HENRY HENKE, DECEASED, AND TRUSTEE OF THE MRS. CATHERINE HENKE TRUST, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Houston Land & Trust Co. v. Commissioner Docket No. 63321. United States Board of Tax Appeals 33 B.T.A. 73; 1935 BTA LEXIS 811; September 24, 1935, Promulgated *811 1. Joint will of husband and wife held to have created two trusts rather than one as determined by respondent. 2. Payments by trustee to decedent's widow and daughter held to be annuities and not deductible from trust income. Morris D. Meyer, Esq., for the petitioner. Bruce A. Low, Esq., and R. B. Cannon, Esq., for the respondent. ARUNDELL *73 The petitioner herein appeals from the respondent's determination of a deficiency in income tax for the year 1929 in the amount of $18,378.39. There are two issues. First, whether a joint will of decedent and his wife created a single trust as determined by the respondent or two trusts as contended by the petitioner. Second, whether payments to decedent's widow and daughter were distributions of income or annuities. FINDINGS OF FACT. The First Issue. Henry Henke, now deceased, and his wife, Catherine Henke, who is still living, were at the time of his death and for some fifty years prior thereto residents of Houston, Texas. During Henke's lifetime they amassed a very considerable fortune through the operation of a mercantile business in Houston, and other ventures. Substantially*812 all the property owned by them was community property. During the latter part of 1927 Henke was confined to his bed, and while so confined he and his wife employed an attorney to redraw an existing joint will theretofore executed by them. The redrawn will was a joint will and was executed by Henke and his wife on January 27, 1928. Henke died on February 18, 1928. On February *74 22, 1928, the widow, Catherine Henke, made and published a codicil to the will, hereinafter more fully described. Paragraphs numbered I, II, and III of the will of January 27, 1928, provided for the payment of numerous cash bequests and the payment of certain annual sums to named beneficiaries, and paragraph I contained the following provision: It is intended that the foregoing bequests are made jointly, and not separately, and are to be paid only the one time and out of our joint property and only after the death of the said Henry Henke. Paragraph IV reads in full as follows: If Henry Henke should die before Mrs. Catherine Henke does and for any reason, legal or otherwise, the foregoing bequests or any of such bequests should not be paid out of our joint property, nevertheless, said*813 bequests shall be paid in any event and shall be deducted from Henry Henke's portion of our joint property but shall be paid only the one time and it shall not be construed that such bequests are again payable out of the portion of Mrs. Catherine Henke's property after she shall have died. In paragraph V Catherine Henke named Henry Henke "as executor and trustee of her property", but in the event of his death before qualifying or before the expiration of a certain period of time, the Houston Land & Trust Co. (hereinafter called the Trust Co.) was to become executor and trustee. If and when the appointment of the Trust Co. took effect it was to give bond in the amount of $1,000,000 made by 10 surety companies, "and the premiums of which bonds shall be paid out of her estate." In the same paragraph Henry Henke named the Trust Co. "as executor and trustee of his property", with bond in the amount of $1,000,000, the "premiums for such bond to be paid out of his estate", with the further provision "that whether acting as executor and trustee for one or both of our estates" only one bond of $1,000,000 was to be given by the Trust Co. "and the one bond shall be conditioned to apply to*814 the handling of our joint property." Upon the death of Catherine Henke, if Henry Henke was living, he was directed "to keep our joint property intact" during his life and thereafter the Trust Co. was to keep it intact for a certain period of time. "In the event of Henry Henke's death, if Mrs. Catherine Henke is living, then the joint property shall thereupon be taken charge of by the Houston Land & Trust Company and kept intact until the time for distribution arrives * * *." The qualifying executor and trustee, whether Henry Henke or the Trust Co., was given "control and possession of our joint property", with certain limitations on the Trust Co. not material here. Eight years after the death of both Henry and Catherine Henke, that is after the death of the one dying last, the Trust Co., "after deducting expenses and charges incidental to the management of the estates up to the time", was *75 to "turn over to our daughter Leona Bethea the balance of our estates * * *." Paragraph VII provided that the survivor should have the right, by codicil or other instrument in writing, to make charitable bequests "to be paid out of our joint estate" in an amount not to exceed $15,000. *815 Paragraph XII provided that if Catherine Henke predeceased Henry Henke and if Henry Henke thereafter married, "then the portion of said joint property belonging to the Estate of Mrs. Catherine Henke shall thereupon be distributed" as though the trust period had passed, that is, to the daughter or her issue. By codicil dated February 22, 1928, Catherine Henke provided for bequests of $5,000 to each of three charitable institutions. The joint will was filed for probate on April 8, 1928, and on May 15, 1928, letters testamentary were issued to the Trust Co. as executor. The Trust Co. filed a bond in the amount of $1,000,000 and thereupon there was delivered to the Trust Co. all the property, real and personal, that had during the lifetime of Henry Henke constituted the community estate of himself and Catherine Henke. One half of the property passed to the Trust Co. upon its qualification as executor and the other one half was placed with it by Catherine Henke in accordance with her agreement with her deceased husband under the terms of the joint will. The property has at all times since been administered, managed, and/or disposed of by the Trust Co. under the terms and conditions*816 contained in the joint will. Until July 1, 1929, the Trust Co. kept the records pertaining to the Henke properties as though they constituted one estate. This was done because the trust officer was of the opinion that it was necessary to keep the records in that way during the period of administration. That period expired before July 1, and the records were kept in the same way until July 1 in order to have the accounting dates for the administration fall on the customary accounting dates. Thereafter it kept two separate accounts, one relating to the estate of Henry Henke, deceased, and the other to the trust property of Catherine Henke. For the year 1929 the Trust Co. filed two fiduciary returns (Form 1041) covering the income received from the Henke properties. One return was captioned "Estate of Henry Henke, Trust" and showed a gross income of $116,403.31, with deductions of an equal sum, and no net income. The other, captioned "Mrs. Catherine Henke Trust", showed gross income of $116,403.31, deductions of $53,733.72, and net income of $62,669.59. Two individual income tax returns, Form 1040, were filed, one, captioned "Mrs. Catherine Henke Trust", *76 reporting*817 gross and net income of $62,669.59, and the other, captioned "Mrs. Catherine Henke", reporting gross income of $38,925.94 and net income of $36,637.58. No return was made on Form 1040 for 1929 for the Henry Henke estate or trust as the Trust Co. considered that there was no income to report for that year. The respondent determined that the Henke properties were held on one trust by the Trust Co. He combined the two sums reported in the fiduciary returns, Form 1041, thus finding a gross income of $232,806.65; he disallowed some of the deductions claimed for distributions to beneficiaries and determined an "amended joint trust income" of $127,705.79. The Second Issue. Paragraph V of the joint will provided in part as follows: If Henry Henke dies before the death of Mrs. Catherine Henke, the Executor and Trustee shall pay to Mrs. Catherine Henke, during her lifetime and at such times and in such amounts as she may desire, the sum of Forty Thousand Dollars ($40,000.00) per year out of the net revenue of our joint property, and if said net revenue is insufficient for such purpose, then the principal of our joint property shall be resorted to in order to pay such yearly sum, *818 and such Executor and Trustee, after the death of Henry Henke and until time for distribution arrives, shall pay to our daughter, annually, the sum of Twenty-five Thousand Dollars ($25,000.00) at such time and in such amounts as she may desire, out of the net revenue of our joint property, and if such revenue is insufficient for that purpose, then the principal of our joint property shall be resorted to in order to pay said sum, and if the net revenue of our joint property will so justify, then said annual payments to Mrs. Catherine Henke shall be increased to Fifty Thousand Dollars ($50,000.00), and such annual payments to our daughter shall be increased to Thirty-five Thousand Dollars ($35,000.00); but should Mrs. Catherine Henke die before the time for distribution arrives under the provisions of this will, the annual payments to our daughter, Mrs. Leona Bethea, shall be increased to the sum of Seventy-five Thousand Dollars ($75,000.00) per annum, if the net revenue of our joint property will so justify, and if not then such annual payments shall only be increased to the sum of Sixty-five Thousand Dollars ($65,000.00) and if the net revenue of our joint property is insufficient*819 for such purpose, then the principal of our joint property shall be resorted to in order to pay such yearly sum. In the fiduciary return filed for the "Estate of Henry Henke, Trust" for 1929 deductions were claimed for distributions to Catherine Henke and Mrs. S. L. (Leona) Bethea, in the respective amounts of $14,367.57 and $8,978.73; in the fiduciary return filed for the "Mrs. Catherine Henke Trust" for 1929 deductions were claimed for distributions to Catherine Henke and Mrs. S. L. (Leona) Bethea in the respective amounts of $20,000 and $12,500. These deductions (and payments to other beneficiaries which are not in issue) were disallowed by the respondent. *77 In Catherine Henke's individual return for 1929 she reported $20,000 as "Income from fiduciaries - Houston Land & Trust Co.", and $14,367.57 as dividends. The corpus of the Henke properties was not touched by the distributions to beneficiaries for which deductions were claimed, as income was more than sufficient to cover these payments. OPINION. ARUNDELL: There have been a number of cases decided involving the question of whether an instrument created one or several trust estates. *820 See ; ; ; . The decisions lay down no comprehensive rule decisive of future cases. In , we said: "In the final analysis cases of this sort must stand or fall on the basis of their own peculiar facts." It is a fundamental rule that in construing wills the intention of the testator shall govern, and the intention is to be sought in the first instance in the words of the will itself. There were two makers of the will before us, each having an undivided interest in community property. Apparently they felt it would be to the interest of the survivor and the beneficiaries that the death of one should not bring about a physical segregation of the property but that it should remain under a unified management for a period of years before being divided. It does not necessarily follow, however, that the entire property was required to be*821 administered as one trust. Cf. We must search the will to see what intent was expressed therein on this matter. On examination of the will we find throughout it provisions which could only be carried out if the interests of the two makers were administered as separate trusts. For instance, in paragraph IV, under certain circumstances the numerous cash bequests "shall be deducted from Henry Henke's portion of our joint property." Under paragraph V, the premiums on the Trust Co.'s bond when it became Henry Henke's executor and trustee were "to be paid out of his estate"; if the Trust Co. became Catherine Henke's executor and trustee the bond premiums were "to be paid out of her estate." Under paragraph XII, if Henry Henke was the survivor and remarried "then the portion of the said joint property belonging to the Estate of Mrs. Catherine Henke" was to be distributed to others. These provisions indicate that the makers of the will intended the property to be handled as two trusts. This was also the understanding *78 of the Trust Co., for after the period of administration it carried the property*822 as constituting two trusts and so reported the income. We are of the opinion that the respondent erred in combining the income reported in the two fiduciary returns and treating it as the income of one trust. If the words of the will itself be considered ambiguous and leave any doubt as to the intention of the makers of the will, there is clarifying oral evidence in the record. The decedent's personal secretary testified that he discussed with both Mr. and Mrs. Henke the provisions to be included in the joint will; that they wanted the will drawn so as to have the property administered in two trusts in order to get the benefit of lower income taxes, and Mrs. Henke particularly wanted her share administered so that in the event of Mr. Henke's remarriage her share would go to her daughter. The secretary conveyed the wishes of the Henkes to the attorney who drafted the will, and was assured by the attorney that the will as drafted and executed by the Henkes created two estates or trusts. Under the second issue petitioner claims the right to deduct the payments made to Catherine Henke and Leona Bethea. If the payments made to these beneficiaries were required to be paid from*823 income and could only be paid therefrom they were income to the beneficiaries, , and deductible by the fiduciary under section 162(b) of the Revenue Act of 1928; if they are annuities payable at all events and not dependent upon trust income, they are not income to the beneficiaries, , and not deductible by the trustee. . We have set out at length in the findings the provisions of the will under which the payments were made to Catherine Henke and Leona Bethea. They are, in brief, that the payments were to be made from net revenue of the trust property, but if such revenue was insufficient, then the principal of the property was to be used for that purpose. The fact that payments were actually made from income is not decisive of the question. In , it was said: "It would be an anomaly to tax the receipts for one year and exempt them for another simply because the executors paid the first from income received and the second out of the corpus." The question here was directly decided*824 in , affirming , where payments to beneficiaries were to be made "from the income and so much of the principal of the trust fund as may be needed." The court held the trustee not entitled to deduct the payments to beneficiaries under this provision, saying: It is perfectly clear from the provisions of the will that the testator made the specific annuities and expenses a charge upon the entire trust fund and not *79 alone upon the income thereof. He made the payment of the annuities certain, especially to his daughter, as long as there was anything left of the corpus of the trust. Following the case last quoted, we hold that the respondent properly disallowed the deductions claimed for payments to Catherine Henke and Leona Bethea. Deduction for similar payments to others, while urged in the petition to be allowable, are waived in petitioner's reply beief. Decision will be entered under Rule 50.